According to the terms of the 1987-88 collective bargaining agreement
between Barron County (Department of Social Services), hereafter the County, and
Northwest United Educators, hereafter the Union or NUE, the parties requested
that the Wisconsin Employment Relations Commission designate a member of its
staff to hear and resolve a dispute regarding the County's implementation of the
vacation provision of the relevant collective bargaining agreement. The
undersigned was designated Arbitrator, and after having made full written
disclosures to the parties to which there were no objections, hearing in this
case was held on April 24, 1989 in Barron, Wisconsin. No stenographic transcript
of the proceedings was made and the parties submitted all post-hearing briefs,
including Reply Briefs by July 7, 1989.

ISSUE:

The parties stipulated to the following issue:

Did the County violate the 1987-88 collective bargaining
agreement by the
manner in which it implemented the new vacation language in 1988; if so, what is
the appropriate remedy?

RELEVANT CONTRACT PROVISIONS:

ARTICLE XXVII - VACATION

27.01 Annual: All regular full-time employees in
the bar-gaining unit
shall receive the following vacation with pay:

After one year of employment, one week of vacation

After two years of employment, two weeks of vacation

After four years of employment, two
weeks and one day of vacation

After five years of employment, two weeks and two days of vacation

After six years of employment, two weeks and three days of vacation

After seven years of employment, two weeks and four days of vacation

After eight years of employment, three weeks of vacation

After nine years of employment, three weeks and one day of vacation

After ten years of employment, three weeks and two days of vacation

After eleven years of employment, three weeks and three days of vacation

After twelve years of employment, three weeks and four days of vacation

After thirteen years of employment, four weeks of vacation

Effective January 1, 1988, add the following:

After fourteen years of employment, four
weeks and one day of vacation

After fifteen years of employment, four weeks and two days of vacation

After seventeen years of employment, four weeks and three days of vacation

After nineteen years of employment, four weeks and four days of vacation

After twenty years of employment, five weeks of vacation

ARTICLE II - GRIEVANCE PROCEDURE

. . .

5. Decision of the Arbitrator: The decision of
the arbitrator shall be
limited to the subject matter of the grievance. The arbitrator shall not modify,
add to or delete from the express terms of the agreement.

FACTS:

The NUE has represented two separate bargaining units (professional and
non-professional) of employes of the Barron County Department of Social Services
under one contract for several years. Article 27 of the 1985-86 agreement
provided that covered employes would receive a maximum vacation of four (4) weeks
"after" the employe had been employed by the County for thirteen (13) (or more)
years. The language of Article 27 was changed as part of a voluntary settlement
of the 1987-88 contract. There, the NUE and the County agreed that effective
January 1, 1988 the maximum allowable vacation earned by covered employes would
gradually increase to a maximum of five (5) weeks of vacation "after" twenty (20)
years of County employment. The language detailing the increased vacation
benefit mirrored the language that had been used previously in Article 27 with
the exception of the introductory words used to indicate when the enhanced
vacation would become available: "effective January 1, 1988, add the following".

This increased vacation, effective in the second year of the contract, was
undisputedly proposed by the County and was clearly "traded" during the parties'
negotiations for a reduction (also effective in the second year of the agreement)
in the maximum sick leave accumulation for new hires (from 180 days to 120 days).

It is also undisputed that the County's practice for more than 20 years has
been to credit employes with their annual vacation only upon the celebration of
the anniversary date of their employment with the County. Furthermore, it has
been the County's consistent policy never to prorate vacation. Thus, employes
with more than one year's County service who terminate their employment have been
paid only for such unused vacation as they were credited with following their
most recent anniversary date.

The only exception to this general approach of anniversary date vacation
accrual without proration has been done regarding employes hired on or before
January 1, 1965. Several years ago, when the County abrogated its merit pay plan
and its policy of requiring that all vacation be used up during each calendar
year, the County undisputedly adjusted employe dates of hire if they had been
hired on or before January 1, 1965 to list all such hire dates as January 1,
1965. Two current employes, Ness and Abbuehl, covered by the relevant contract
herein fall within this group and they have been affected by this adjustment.
Their seniority dates have been adjusted to January 1, 1965.

In addition, in line with its overall practice, it has been the County's
consistent policy that County employes who have terminated employment shortly
after their anniversary date have been granted full payment for any unused
vacation for that year. Finally, employes who have terminated their employment
before reaching the first anniversary of their hire have consistently received
no vacation pay, consistent with the County's anti-proration policy. (1)

The evidence also showed that during contract and settlement negotiations
for the 1987-88 contract, the parties did not discuss how vacations would be
computed in the future; there were no discussions regarding changing from the
anniversary date vacation accrual policy to a calendar year or prorated policy;
and there were no discussions of any transitional plan or any short-term
proration of the new vacation benefit during 1988. Finally, there were no
discussions between the parties of the possibility of any windfall in vacation
benefits for some less senior employes. Indeed, it is apparent from the record
that the windfall potential of the Article 27 language was not realized by the
parties until after settlement and ratification of the 1987-88 agreement had been
accomplished.

The instant grievance was filed on October 28, 1988 following an exchange
of letters beginning with the Union's September 14th letter requesting an
adjustment in the vacation of the following eleven (11) employes:

NAMEHIRE DATE

Ness (9/1/61)

Abbuehl (1/1/65)

Newman (7/16/69)

Keppen (9/1/69)

Krovosa (4/27/70)

Lindeman (10/18/71)

Peterson (2/1/72)

Borger (2/15/72)

Stearns (5/8/72)

Maas (4/1/74)

Fankhauser (6/17/74)

From the initiation of the grievance to date, the County took the position
that each employe could be credited with and receive the additional vacation
benefit they were entitled to pursuant to the new vacation language as of their
anniversary dates of employment which fell on and after January 1, 1988 but that
there would be no proration of the enhanced vacation benefit during 1988.

Both Ness and Abbuehl were granted an additional five (5) days (one week)
of vacation in 1988 since their seniority/hire dates had been previously adjusted
to January 1, 1965, as discussed above. Hence, the parties were and are in
agreement regarding the disposition of Ness and Abbuehl. However, with regard
to the remaining nine (9) employes listed above, the NUE has sought proration of
their 1988 vacation and the County has refused to adjust their vacation allotment
for 1988 relying upon its above-described position against proration.

As a practical matter, the evidence here demonstrated that employe Krovosa,
who celebrated her hire on April 27 received 24 days of vacation benefit as of
April 28, 1988. Thus, although both employes Newman and Keppen had greater
seniority than Krovosa (having been hired on July 16, 1969 and September 1, 1969
respectively as compared to Krovosa's hire dated of April 27, 1970), Krovosa was
able to begin using the new vacation benefit before Newman and Keppen. And
Krovosa received the same number of vacation days that Keppen and Newman did
following their anniversary dates of employment in 1988. However, it is also
clear that Newman and Keppen were credited with 25 days of vacation following
their anniversary dates of hire in 1989 which was more than Krovosa and other
less senior employes received. Thus, any possible inequities created by the
County's implementation of the new vacation language were wholly and undisputedly
corrected in 1989.

POSITIONS OF THE PARTIES:

Union

The NUE has argued that it is intrinsically unfair and contrary to generally
accepted labor relations principles for more senior employes to receive the same
or less vacation in any calendar year than less senior employes. NUE asserted
that the language "Effective January 1, 1988, add the following" supports its
argument that the County should have prorated the increased vacation benefit as
of January 1, 1988. Thus, the NUE contended that the fairest method of crediting
vacation during the 1988 transition year would be to prorate vacation in 1988
upon the passage of the January 1, 1988 effective date of the new vacation
language.

For example under the NUE's analysis, employe Newman, hired July 16, 1969,
should have received a 1988 vacation adjustment, as follows: 9.17 days (at the
1986 rate of 20 days for the period prior to January 1, 1988) plus 12.46 days (at
the 1988 rate of 23 days for the period after January 1, 1988). This approach,
the NUE argued, would support the general intent and meaning of the new vacation
language, proposed by the County. In this regard, the NUE argued that the
language, "Effective January 1, 1988 . . ." clearly indicates that the County
intended that the new vacation benefit should be accrued and enjoyed in 1988 (but
not before), and that the County had intended that the enhanced vacation benefit
should be available to employes as of January 1, 1988, not on their various
individual anniversary dates.

The NUE also argued that since the County had proposed the new vacation
language, it was incumbent upon the County to make clear to the Union during
negotiations, how the language would be applied or interpreted. Absent evidence
to show the County had clearly described the further operation of the new
language, NUE asserted, the arbitral principle that language should be construed
against the drafter should be applied by the Arbitrator here. In addition, the
NUE asserted that the arbitral principle of interpreting contract language so as
to avoid harsh or absurd results should be applied in this case. Thus, since the
County's interpretation of the vacation language had resulted in some less senior
employes receiving and using the new vacation benefit before some of the more
senior employes, the NUE concluded that this harsh result should be remedied.

Based upon the facts and the equities here, the NUE sought a make whole
remedy for the nine (9) employes listed above (either in vacation time off or in
pay at current rates) for the 1988 vacation they should have received and enjoyed
in 1988.

In its Reply Brief, the NUE pointed out that just as wages are paid at the
rate in effect at the time the work is performed, so should vacation be used and
paid at the pay rate and vacation day rate in effect at the time the vacation is
taken. Therefore, NUE asserted that since the vacation rate changed effective
January 1, 1988, vacation should have been prorated from that effective date
forward.

County

The County argued that Article 27 is clear: that the language "After four-teen years
of employment, four weeks and one day of vacation . . ." must control
the point of accrual of the new increased vacation benefit for each eligible
employe, and the language, "Effective January 1, 1988 . . ." merely indicates the
date after which the occurrence of each eligible employe's anniversary date will
trigger the increased vacation credit and accrual.

This interpretation, the County urged, was also clearly supported by the
County's well-known and consistent past practice of crediting vacation only upon
the passage of the employe's anniversary date of hire without proration. In
addition, the County asserted that the Union had failed to meet its burden of
proof in this case. In this regard, the County contended that the Union had
failed to prove any factual justification, past practice or any mutual agreement
by the parties to put a transitional prorated vacation plan into effect. The
County pointed out that given the fact that the NUE never requested a change in
the County's anniversary date vacation accrual and usage policy, the parties
could rightly assume that the old vacation accrual system would apply to the new
vacation benefit. Thus, in the County's view, the words "Effective January 1,
1988 . . ." must be read to mean that the additional vacation would not become
available until the second year of the contract.

In conclusion, the County urged the Arbitrator to disregard the NUE's equity
arguments since Article 27 is generally fair, providing more vacation for the
more senior employes. The County sought denial and dismissal of the grievance
in its entirety.

The County also filed a Reply Brief herein, directed to three specific
points. First, the County recounted the facts regarding the difference between
the nine employes affected by this case and the Ness and Abbuehl situations.
Second, the County emphasized that the Union has produced no evidence to support
a change in the County's practice of crediting employe vacation. Finally, the
County asserted that it has never awarded fractional days of vacation, contrary
to the Union's calculations in its Initial Brief and, the County contended, no
inequities could result from its implementation of the new vacation language, as
more senior employes were actually credited with more vacation upon the passage
of their anniversary dates in 1988.

DISCUSSION

Although the NUE's equity arguments are compelling in part, the facts of
this case require that the grievance be denied. The new vacation language is
clear, in my view. I note that the new vacation benefit language proposed by the
County mirrored the substance of the old vacation language exactly. This wording
directly and strongly supports a conclusion that the County intended to apply the
new language as of January 1, 1988, exactly as it had applied the old language:
upon the passage of each employe's anniversary date. Furthermore, this wording
should have put the parties on notice as to the future inter-pretation of the new
language.

The fact that the new language also contained the phrase "Effective
January 1, 1988, add the following . . ." does not require a different con-clusion. The
language which follows the "effective" phrase actually applies to
the new language that follows and not to the benefit itself. The "effective"
language merely makes clear when the new benefit may first be enjoyed: for
example, only after fourteen years of employment may an employe receive four
weeks and one day of vacation. Such language regarding the effective date of a
described benefit is ordinarily and necessarily found in multi-year agreements
such as the one in issue here. Indeed, the undisputed facts show that the new
vacation benefit was intended to become available only during 1988 (upon each
employes anniversary date), as part of a "trade" relating to new hire sick leave
accumulation, also effective beginning in 1988.

If the parties had intended to prorate the new vacation benefit in 1988,
they could have expressed that intent in the collective bargaining agreement.
To prorate vacation here even if it is only for the 1988 year, is simply
unsupported by any contractual provision, bargaining history, past practice or
other factual justification. In this regard, I note particularly that the manner
in which the County implemented the new vacation benefit was entirely consistent
with its well-established past practice regarding vacation accrual and usage.
Based upon the relevant evidence and argument, I must dismiss the grievance in
its entirety.

AWARD

The County did not violate the 1987-88 collective bargaining agreement by
the manner in which it implemented the new vacation language in 1988.

Dated at Madison, Wisconsin this 28th day of August, 1989.

By

Sharon Gallagher Dobish, Arbitrator

1/ County records indicated that between 1984 and
1988, four employes who
terminated their employment prior to reaching the first anniversary of
their hire were not paid for any vacation time. Also, in one instance
during this 1984-88 period, employe McGee who was hired on
February 19,1985 and quit on February 28, 1986 received pay for one (1)
week's vacation. The County Director of Social Services testified,
further, that since her hire into the Department in the early 1960's, the
above described vacation policies have been in place. The NUE offered no
contradictory evidence regarding these past practices.